The Times reported earlier this week that a case was about to be heard in which the Court of Appeal was being asked to consider the question of privacy in respect of financial remedy cases and appeals – and that it was thought that the Appeal Judges might issue some guidance to clear up a rumbling dispute about the correct approach to the privacy of ex-couples in this sort of case.
The report said that :
A divorcee who is fighting her former husband for a bigger payout is seeking to prevent press coverage in a case that could lead to similar disputes being shrouded in secrecy.
The woman, who says that he had failed to disclose the true value of his assets, will tell appeal judges this week that the case involves finances and is “quintessentially private business”.
Her lawyers will tell the court: “This is a category of court business that is so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression.”
The case is being seen as a test of whether divorce disputes should be anonymous and media organisations are challenging the woman’s claim. There is an order in place that prevents publication of the parties’ names, addresses and information that could identify them.
Frances Gibb explained about the difference of approach between various High Court Judges on whether or not parties to this sort of dispute should be able to expect privacy, or whether the press ought to be able to report the details of their cases. You can see one example of an article written by one of our project members on this topic here :
The Times also ran a leader about the broader issue of privacy raised :
They say, perhaps somewhat unfairly, that
The divorcee’s case before the appeal judges may not seem a strong one for advocates of open justice. Her lawyers claim it hinges on financial information that is “quintessentially private business”. If so, she has the option of paying to use a private judge, but those who use the courts should assume their hearings will be public. If the perception takes hold that expensive legal representation can buy anonymity, faith in the vital principle that all are equal under the law is quickly eroded.
Unfairly, because, of course, other than for very wealthy litigants, private judges are not an “option” at all (and if you didn’t know they even existed take a look at IFLA or the websites of many specialist family chambers, who offer “Private FDRs and other private options). The Times’ distaste for people who want to ‘purchase anonymity’ through lawyers does not seem to extend to those who would do so through a private judge, the existence of which for the wealthy has been described by many commentators as a two tier justice system. So we are not sure their position is logically consistent.
However, they do acknowledge clearly that children have a right of anonymity in almost all cases, but do not hold the same for adults.
So what about this case?
Initially we weren’t sure of much detail about this current appeal, so we thought it would be more helpful to adopt a watch and wait approach. There is a bit more information now available and we think we can say something useful by way of explanation.
Today, it was reported by The Times that the wife in the case had been refused permission to appeal, and with it had lost her cloak of anonymity – an order preventing her being named was discharged. The article names her as Tina Norman, her husband as Mr Norman :
In spite of the lifting of the anonymity order, the Court of Appeal did not immediately provide their reasons, and so there still isn’t a great deal of detail of the case in the news report to help us understand why the press were interested in THIS particular case (which they must have thought had *some* public interest for them to be bothered to spend the money arguing about it), although we are told that the case has been going in one shape or form for more than a decade, and that it involves allegations of significant and fradulent non-disclosure (which presumably now fall away as a result of the Court of Appeal decision). The article did tell us that Mrs Norman had taken issue with “critical” and “embarrassing” press attention in 2011 at around the time of an earlier appeal, which had led to the injunction being imposed. This rang a bell and whilst we couldn’t find any of those 2011 reports, did manage to identify the earlier appeal, reported as N v N  EWCA Civ 940, where Mrs Norman did not fare well either. We can see from that judgment some aspects of the case which are typically likely to arouse the interest of the press – the judge had made findings that Mrs Norman was not willing to go out and work. The wife at that time was a litigant in person and, it is evident from the bare dates we have, has been very determined in pursuing her case over a number of years. Not only did this case offer an opportunity for the lawyers for Mrs Norman and The Times to expand on issues of principle around privacy and open justice but it appears to have the stuff of interest to the press (which is not necessarily the same as public interest).
There are some short exerpts from the arguments made by the advocates in The Times article, which tell us that
- The Times relied upon some procedural / technical (but important) failures in the granting of the injunction (it is very clear the press MUST be told that such an order is being considered – The Times tells us that they weren’t)
- The Times also ran a public interest argument, and said that the starting point is open justice – and in this case there were no particular features, like children, to divert the court from the starting point. As to the compromise of being permitted to publish with anonymity (i.e. initials only) Mr Wolanski for The Times said :
Courts had to guard against “mission creep” in imposing privacy orders, he said. Anonymised cases had far less chance of being reported. Newspaper editors needed the names of those involved to “give them life” and engage their readership.
We’ll have to await the judgment from the Court of Appeal to hear what their Lordships thought of all these arguments and which one really clinched it – and to see what broader guidance they are prepared to give. Given that they refused permission to appeal, rather than going on to hear the full appeal, there must be some doubt whether they will consider it appropriate to give full guidance on this substantially contested area. It may need to await another appeal. If they decided that the injunction could simply not stand because it was not properly made, they are probably unlikely to go on and give gratuitous (but much needed) guidance on the bigger issue.
We will update this post once we identify the judgment from the Court of Appeal.
(There is no mention of Mr Norman being represented which may be because it was a permission hearing, although it was listed with the appeal to follow – he may have been present and / or represented)
UPDATE 11 Feb 2017 : We have now written an updating blog post here in light of the publication of the judgment of the Court of Appeal :